Livinglies.wordpress.com| March 6, 2017
By Neil Garfield
The use of Judicial notice is widespread. Banks attempt to use it in order to get something into evidence they could not otherwise prove. Homeowners use it for the same reason. Usually both are mistaken in the use of Judicial notice and the Court is in error for accepting it unless the other side fails to raise a proper objection. Like most things, if you fail to object the document or record will be in evidence. That still leaves the issue of how much weight to give the document as evidence.
Generally Judicial Notice is meant to allow introduction of a document that is in the Public Domain and which is maintained by a government institution. Technically the only proof issue that is satisfied by granting judicial notice is that the document exists. What is written on the document or record introduced by way of Judicial Notice is NOT in evidence — only that the document exists. Thus when homeowners try to use judicial notice of something derogatory about the banks or servicers, all they have is a recognition that this document or report is in the public domain — not that the words themselves are true or even in evidence.
The strategy of the Banks and servicers is to file something somewhere in the public domain and then ask for judicial notice without proper foundation for the documents or its contents. The banks and servicers extend this even further if they can get away with it — by getting the Court to take judicial notice of the note, mortgage or assignment. Or by getting the court to accept into evidence the Pooling and Servicing Agreement.
Objections raised on the basis of lack of notice, hearsay, hearsay on hearsay, lack of foundation, and other rules of evidence should be employed aggressively. However this is a two-edged sword. If the Banks get it in they will then argue that since the homeowner is not a party to the PSA the homeowner is barred from raising violations of the PSA as a trust instrument. If the Banks fail to proffer the PSA or fail to get the Court to accept judicial notice they will proceed anyway arguing that the provisions of the PSA are irrelevant anyway.
In fact if you drill down in cross examination you will probably find that it is the self-proclaimed servicer who is the real party in interest with apparent possession of the original note and mortgage, but which in truth are newly minted, doctored or entirely fabricated, instruments that appear at trial.
If you look at the Florida Rules (most states are the same or similar) you will see that even the SEC site is questionable as a source of documents because the documents are not certified. In truth ANYONE can file ANYTHING on the SEC site and then try to get it accepted into evidence — even though the document (PSA) is not even signed or is not even complete.
But regardless of the action by the court the proponent of a document or record introduced by Judicial Notice must still prove the truth of the matter asserted in the document. it is no different than introducing the document using as foundation the testimony of a witness (usually a robo-witness). But there again the testimony of the witness is going to be that the document is some sort of business record. The actual source of the document is almost always guarded and concealed by the Banks and Servicers.
The reason is that many or most of the Bank and Servicer documents are fabricated, forged, robo—signed instruments that are self-serving and not based upon anything that happened in real life. The truth, difficult to prove but nonetheless true, is that the document the so-called business records of the servicer are neither business records of the servicer nor of the alleged REMIC Trust but rather come into real life by way of a printer that prints records and documents fabricated and maintained by a third party “vendor” like LPS/Black Knight in Jacksonville, Florida.
The change in servicer thus involves no actual “boarding” process, since LPS operates like MERS. Anyone can have access and the transfer of the records is really a transfer of access to the IT platforms of LPS where the data and documents are manipulated to create the illusion of generally accepted and facially valid records or documents.
Florida Statute §90.202 Matters which may be judicially noticed.—A court may take judicial notice of the following matters, to the extent that they are not embraced within s. 90.201:
(1) Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature.
(2) Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States.
(3) Contents of the Federal Register.
(4) Laws of foreign nations and of an organization of nations.
(5) Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States.
(6) Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.
(7) Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States.
(8) Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed copies or as certified copies.
(9) Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies.
(10) Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies.
(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
(12) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.
(13) Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States.
History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 1, ch. 77-174; ss. 3, 22, ch. 78-361; ss. 1, 2, ch. 78-379.
Florida Statutes § 90.203 Compulsory judicial notice upon request.—A court shall take judicial notice of any matter in s. 90.202 when a party requests it and:
(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.
History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379.
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